Filed 10/4/13 P. v. Bullington CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E057494
v. (Super.Ct.No. FVI1102681)
WILLIAM BULLINGTON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Lorenzo R.
Balderrama and John M. Tomberlin, Judges. Affirmed.
Jesse W.J. Male and Michelle Rogers, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
1 INTRODUCTION
On March 1, 2012, a second amended complaint1 charged defendant and appellant
William Bullington with four counts of felony second degree robbery under Penal Code2
section 211 (counts 1-4). As to each count, the complaint also alleged that the offenses
were serious felonies within the meaning of section 1192.7, subdivision (c); and violent
felonies within the meaning of section 667.5, subdivision (c). Furthermore, the complaint
alleged that defendant was eligible for imprisonment under section 1170, subdivision
(h)(3).
After a jury trial, on September 28, 2012, the jury convicted defendant of three
counts of robbery (counts 1, 3, 4). As to count 2, the jury was unable to reach a verdict.
On November 2, 2012, on a motion by the People, the court dismissed count 2.
The trial court imposed a four-year state prison sentence, and awarded defendant credit
for time served of 343 actual days and 51 conduct credits pursuant to section 2033.1.
On November 9, 2012, defendant filed a timely notice of appeal.
STATEMENT OF FACTS
A. Factual Background
Defendant is a 54-year-old Caucasian male, who weighs about 165 pounds and is
five feet 11 inches tall. He owns a white Scion XB, with damage to its rear from being
backed into a pole.
1 The original complaint was filed on November 28, 2011.
2 All further statutory references are to the Penal Code unless otherwise indicated. 2 1. The Buffet (Count 4)
On September 17, 2011, defendant robbed a buffet restaurant in Hesperia. He
gave a cashier a three-to-four-line note on a sheet of paper. The cashier only read the
portion that said, “give me all the money. I‟ll shoot you.” The cashier never saw a gun
but saw defendant make a gesture with his pocket like he had a gun. The cashier put all
the paper bills from her register into a black bag that defendant was carrying, and then
defendant exited the restaurant. Defendant was wearing a “military color jacket,” a hat,
and reading glasses. The cashier described the robber as Asian when she called 911. A
manager of the restaurant saw a man run out of the restaurant and drive off in a white
smaller boxed car, like a Scion.
2. The Thrift Store (Count 3)
On October 14, 2011, defendant robbed a thrift store in Hesperia. Defendant gave
an employee a handwritten note on an envelope and a black bag. Also, the employee got
the impression that defendant had a gun. He was wearing a black jacket, red beanie, and
sunglasses. One employee identified defendant in court as the robber. However, she was
unable to identify defendant in a photographic lineup where she had identified two
individuals as possible suspects. A witness was able to provide a partial Oregon license
plate number to the police and had described the vehicle as a white compact four-door
vehicle. The witness also described the fleeing man as about 30 years old, six feet tall,
with a thin build and longer brown hair.
3 3. The Mexican Restaurant (Count 2)
Around 3:30 p.m., on November 25, 2011, a man entered a Mexican restaurant in
Hesperia. He handed an employee a piece of paper and a black bag. The man was
wearing a black ski mask, sunglasses, and a light blue hooded jacket with pockets. The
employee could not determine the racial background of the man but “imagined he was a
white guy” based on the skin she could see through the holes in the mask. The employee
later described the man to the police as a thin white person, in his mid 30s with a medium
build, wearing a brown hooded jacket. The employee did not understand what was
written on the paper because she could not read English. The only word the employee
recognized was “money.” The employee summoned her manager and stayed in the back;
she heard English being spoken and the sound of the register opening.
Based on gestures, the manager thought the man had a gun in his pocket and was
robbing the restaurant. The manager opened the register and put all the bills in the bag.
The manager thought that the man drove away in a white two-door vehicle. Another
witness thought the vehicle was a Honda Fit. The manager later described the robber to
police as an adult male, possibly Hispanic, about five-foot six inches tall.
4 4. The Diner (Count 1)
Around 8:00 p.m., on November 25, 2011, defendant entered a diner in
Victorville. He placed a ripped piece of paper on the front counter that stated, “this is a
robbery, and I need you to empty out the cash register as fast as you can because I have a
gun in my pocket.” An employee then opened the cash register and put all the bills into a
small black plastic bag that defendant held out with both hands. The employee never saw
a gun, but thought defendant had a gun because of something sticking out of his left
pocket that could have been a real or fake gun. A witness saw someone drive away in a
white hatchback.
B. Procedural Background
In the initial complaint filed on November 28, 2011, defendant was charged with a
single robbery charge for the diner incident (count 1). Defendant was arraigned the next
day. On December 7, 2011, defendant was informed that additional charges might be
pending. After discussions with counsel, he agreed that his preliminary hearing would be
timely if completed within 60 days of December 19, 2011.
Defendant‟s trial counsel was not provided with police reports from the other
cases that the district attorney intended to file against defendant until January 11, 2012.
On that date, defense counsel requested a short continuance. Defendant expressly agreed
that his preliminary hearing would be timely if completed within 60 days of January 25,
2012.
5 On January 25, 2012, the prosecutor indicated a first amended complaint would be
filed adding two new charges of robbery. The People requested a continuance of the
preliminary hearing. Defendant expressly agreed that his preliminary hearing would be
timely if completed within 60 days of February 8, 2012.
The first amended complaint was filed on February 7, 2012. It added two
additional counts of robbery—one for the incident at the Mexican restaurant and one for
the incident at the thrift shop. On February 8, 2012, defendant was arraigned on the new
complaint. The People extended an offer and defense counsel reported that defendant
wanted time to consider the offer. Defendant then expressly agreed that his preliminary
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Filed 10/4/13 P. v. Bullington CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E057494
v. (Super.Ct.No. FVI1102681)
WILLIAM BULLINGTON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Lorenzo R.
Balderrama and John M. Tomberlin, Judges. Affirmed.
Jesse W.J. Male and Michelle Rogers, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
1 INTRODUCTION
On March 1, 2012, a second amended complaint1 charged defendant and appellant
William Bullington with four counts of felony second degree robbery under Penal Code2
section 211 (counts 1-4). As to each count, the complaint also alleged that the offenses
were serious felonies within the meaning of section 1192.7, subdivision (c); and violent
felonies within the meaning of section 667.5, subdivision (c). Furthermore, the complaint
alleged that defendant was eligible for imprisonment under section 1170, subdivision
(h)(3).
After a jury trial, on September 28, 2012, the jury convicted defendant of three
counts of robbery (counts 1, 3, 4). As to count 2, the jury was unable to reach a verdict.
On November 2, 2012, on a motion by the People, the court dismissed count 2.
The trial court imposed a four-year state prison sentence, and awarded defendant credit
for time served of 343 actual days and 51 conduct credits pursuant to section 2033.1.
On November 9, 2012, defendant filed a timely notice of appeal.
STATEMENT OF FACTS
A. Factual Background
Defendant is a 54-year-old Caucasian male, who weighs about 165 pounds and is
five feet 11 inches tall. He owns a white Scion XB, with damage to its rear from being
backed into a pole.
1 The original complaint was filed on November 28, 2011.
2 All further statutory references are to the Penal Code unless otherwise indicated. 2 1. The Buffet (Count 4)
On September 17, 2011, defendant robbed a buffet restaurant in Hesperia. He
gave a cashier a three-to-four-line note on a sheet of paper. The cashier only read the
portion that said, “give me all the money. I‟ll shoot you.” The cashier never saw a gun
but saw defendant make a gesture with his pocket like he had a gun. The cashier put all
the paper bills from her register into a black bag that defendant was carrying, and then
defendant exited the restaurant. Defendant was wearing a “military color jacket,” a hat,
and reading glasses. The cashier described the robber as Asian when she called 911. A
manager of the restaurant saw a man run out of the restaurant and drive off in a white
smaller boxed car, like a Scion.
2. The Thrift Store (Count 3)
On October 14, 2011, defendant robbed a thrift store in Hesperia. Defendant gave
an employee a handwritten note on an envelope and a black bag. Also, the employee got
the impression that defendant had a gun. He was wearing a black jacket, red beanie, and
sunglasses. One employee identified defendant in court as the robber. However, she was
unable to identify defendant in a photographic lineup where she had identified two
individuals as possible suspects. A witness was able to provide a partial Oregon license
plate number to the police and had described the vehicle as a white compact four-door
vehicle. The witness also described the fleeing man as about 30 years old, six feet tall,
with a thin build and longer brown hair.
3 3. The Mexican Restaurant (Count 2)
Around 3:30 p.m., on November 25, 2011, a man entered a Mexican restaurant in
Hesperia. He handed an employee a piece of paper and a black bag. The man was
wearing a black ski mask, sunglasses, and a light blue hooded jacket with pockets. The
employee could not determine the racial background of the man but “imagined he was a
white guy” based on the skin she could see through the holes in the mask. The employee
later described the man to the police as a thin white person, in his mid 30s with a medium
build, wearing a brown hooded jacket. The employee did not understand what was
written on the paper because she could not read English. The only word the employee
recognized was “money.” The employee summoned her manager and stayed in the back;
she heard English being spoken and the sound of the register opening.
Based on gestures, the manager thought the man had a gun in his pocket and was
robbing the restaurant. The manager opened the register and put all the bills in the bag.
The manager thought that the man drove away in a white two-door vehicle. Another
witness thought the vehicle was a Honda Fit. The manager later described the robber to
police as an adult male, possibly Hispanic, about five-foot six inches tall.
4 4. The Diner (Count 1)
Around 8:00 p.m., on November 25, 2011, defendant entered a diner in
Victorville. He placed a ripped piece of paper on the front counter that stated, “this is a
robbery, and I need you to empty out the cash register as fast as you can because I have a
gun in my pocket.” An employee then opened the cash register and put all the bills into a
small black plastic bag that defendant held out with both hands. The employee never saw
a gun, but thought defendant had a gun because of something sticking out of his left
pocket that could have been a real or fake gun. A witness saw someone drive away in a
white hatchback.
B. Procedural Background
In the initial complaint filed on November 28, 2011, defendant was charged with a
single robbery charge for the diner incident (count 1). Defendant was arraigned the next
day. On December 7, 2011, defendant was informed that additional charges might be
pending. After discussions with counsel, he agreed that his preliminary hearing would be
timely if completed within 60 days of December 19, 2011.
Defendant‟s trial counsel was not provided with police reports from the other
cases that the district attorney intended to file against defendant until January 11, 2012.
On that date, defense counsel requested a short continuance. Defendant expressly agreed
that his preliminary hearing would be timely if completed within 60 days of January 25,
2012.
5 On January 25, 2012, the prosecutor indicated a first amended complaint would be
filed adding two new charges of robbery. The People requested a continuance of the
preliminary hearing. Defendant expressly agreed that his preliminary hearing would be
timely if completed within 60 days of February 8, 2012.
The first amended complaint was filed on February 7, 2012. It added two
additional counts of robbery—one for the incident at the Mexican restaurant and one for
the incident at the thrift shop. On February 8, 2012, defendant was arraigned on the new
complaint. The People extended an offer and defense counsel reported that defendant
wanted time to consider the offer. Defendant then expressly agreed that his preliminary
hearing would be timely if completed within 60 days of February 29, 2012.
On March 1, 2012, the second amended complaint was filed. It added the fourth
count of robbery for the incident at the buffet. On March 14, 2012, defendant was
arraigned on the new complaint, his counsel requested confirmation of a preliminary
hearing date.
On March 19, 2012, defense counsel reported that he was ready for the
preliminary hearing and objected to any continuances. The People, however, indicated
that they were not ready. The trial court continued the hearing to April 2, 2012, and
noted that this was “within the current waiver of 60 days beyond February 29, 2012.”
On March 28, 2012, the People reported a witness would not be available through
April 10, 2012. The prosecutor confirmed that “2/29 plus 60 is the time situation.” The
trial court then continued the hearing to April 16, 2012, and noted that this was “within
the current time waiver of 60 days beyond February 29, 2012.” The minutes prepared for
6 that hearing, however, erroneously stated that “Defendant waives his/her right to a
Preliminary Hearing within 10 court days and 60 calendar days under PC869b and
60 days beyond 4/16/2012.”
On April 16, 2012, defense counsel reported, “We continue to be ready for the
preliminary hearing.” The prosecutor reported that a material witness was out of town,
and the People again requested a continuance. The trial court, relying on the erroneous
minutes, stated, “We do have 60 days beyond April 16th, 2012. What dates would you
like?” Defense counsel responded, “I thought we had a little less than that, but I could be
mistaken. But at any rate, I think the People said they could be ready next week.” After
discussing dates with counsel, the trial court stated to defendant, “Mr. Bullington, due to
the fact the People have a necessary witness who is unavailable, [and] we do have 60
days beyond April 16, 2012, for your preliminary hearing, I‟m going to set it for further
pre-preliminary hearing, April 18th, 2012, this department at 8:30, with the preliminary
hearing scheduled for April 23rd, 2012, also this department at 8:30. You are ordered
back on both those days. That is within the current time waiver.” Neither defense
counsel nor defendant objected or indicated otherwise.
At the pre-preliminary hearing on April 18, 2012, both parties reported that they
would be ready for the preliminary hearing on April 23, 2012.
On April 23, 2012, the prosecutor again reported that she was not ready to proceed
because she had only secured 12 out of 13 witnesses. She requested new dates for the
following week. Defendant‟s trial counsel objected, stated he was ready, and reported
that no time waiver would be forthcoming. The trial court stated to defendant, “I‟m not
7 going to ask you to waive any further time. We will set it within the previous time
waiver over your objection.” The trial court then set the preliminary hearing for May 3,
2012—outside defendant‟s actual expressed waiver but within the waiver period in the
erroneous minutes. The prosecutor then asked the trial court to confirm “in terms of
time.” The trial court responded, “60 days beyond April 16th, 2012.” Again, neither
defendant nor defense counsel corrected the trial court.
On May 1, 2012, the trial court had the parties review the “rough minutes” of the
April 16, 2012, proceedings. The court then stated that before the April 16 hearing, “the
waiver was 60 days beyond February 29th. . . . Then it comes up for April 16th, 2012. It
appears Judge Poncin says, „The waiver is April 16th plus 60,‟ but that is not taken from
the defendant himself. [¶] It would appear to me that we are beyond the 60-day waiver
that we have to do this preliminary hearing. So I‟m inclined to dismiss the case unless I
hear any new information or anything else.”
Another prosecutor then argued that there was an implied waiver because defense
counsel did not object on April 16, and because the error was attributable to the trial court
and not to the People. The trial court responded, “Well, the waiver is what comes from
the defendant‟s mouth, and there was an error on the minutes on March 28th, 2012,
where the People‟s motion to continue was granted, unavailable witness, and the defense
counsel object[ed] to a continuance. [¶] Then when it comes down to the entering by the
clerk, 60 days beyond April 16th, 2012, which is clearly in error when compared with the
transcript for that date, so I‟m going to dismiss the case.”
8 Another prosecutor then interjected, and asserted that case law provided that once
a waiver was provided the statutory remedy ceases to exist and only a good cause
continuance analysis under section 1050 occurs. He also asserted that the error could not
be imputed to the People because it was the trial court‟s error. The trial court then paused
the proceedings to review a case provided by the People, People v. Griffin (1991) 235
Cal.App.3d 1740 (Griffin) (Fourth Dist., Div. Two). Resuming proceedings, the trial
court stated that it had reviewed the transcripts from Apri1 18 and 23, and concluded,
“looking at both of them, there was an implied waiver of the time frame such that it
would have indicated April 16th plus 60 days.”
The prosecutor then noted that the trial court had informed defendant of the new
dates on the 16th and 23rd. Defendant‟s trial counsel then stated that defendant had not
said anything to the trial court and never stated he was waiving his right to a timely
hearing. Defense counsel further noted that defendant‟s then counsel had indicated that
he believed there was less time, and that the first dates were set within the time frame to
which defendant had agreed. Defense counsel also noted that Griffin concerned trial
deadlines under section 1382 that necessarily include a 10-day trailing period rather than
the set deadline in section 859b. He went on to state that it would be unfair to punish
defendant for the trial court‟s error, and concluded by noting that the People had
remedies available to seek reinstatement of proceedings following a dismissal. The trial
court then repeated its conclusion that an implied waiver existed, and reiterated the
preliminary hearing date was set for May 3, 2012.
9 On the morning of May 3, 2012, the trial court commenced the hearing by stating
that it wanted to provide further reasons for its denial of the motion to dismiss. The court
recited what it thought had occurred and stated, “I did find good cause that there had been
a grace period or an implied waiver of his prelim to the next court date of May 3rd, 2012,
which is today, which is only three days beyond the previously given 60-day time
wavier.” The court then sated that it was relying on Griffin and People v. Love (2005)
132 Cal.App.4th 276, which the trial court described as holding that once a defendant had
waived its speedy preliminary hearing right, the defendant only retained the protection of
the constitutional speedy trial rights. Defendant was then arraigned on the third amended
complaint and defense counsel then confirmed that he wanted to renew the motion to
dismiss. The court sent the case to another department for the preliminary hearing.
At the commencement of the preliminary hearing, defense counsel noted that the
issue regarding dismissal had already been discussed in the prior department but “in an
abundance of caution” objected and made a motion to dismiss under “section 859(b).”
The trial court noted that it had reviewed the minutes that indicated that the issue of
dismissal had been litigated in the prior department, but did not have a transcript. The
court then denied the motion to dismiss because it was not at liberty to reconsider the
ruling in the previous department. The preliminary hearing then commenced, and
defendant was held to answer on all counts and allegations.
The following day, on May 4, 2012, the People filed an information that mirrored
the second amended complaint. On May 8, 2012, defendant was arraigned on the
information and plead not guilty to all counts.
10 On May 18, 2012, defendant filed a motion to set aside the information under
section 995. The motion stated that the trial court erroneously relied on Griffin and Love.
The People opposed the motion and asserted that Love, supra, 132 Cal.App.4th 276,
stood for the proposition that once a defendant has provided a waiver under section 859b,
the defendant was no longer protected by the statute. The People also argued that an
implied waiver occurred because of defendant‟s prior wavier, defense counsel‟s
agreement as to dates, and the failure of counsel or defendant to object when the trial
court stated the incorrect dates. On May 25, 2012, the trial court denied the motion
because it believed that there was an implicit waiver. Thereafter, following a discussion
about retention of experts, defendant provided a limited speedy trial waiver by agreeing
his trial would be timely if it began within 60 days of June 12, 2012. On June 12,
defendant extended that agreement to within 60 days of July 27, 2012.
ANALYSIS
After defendant appealed, and upon his request, this court appointed counsel to
represent him. Counsel has filed a brief under the authority of People v. Wende (1979)
25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of
the case, a summary of the facts and potential arguable issues, and requesting this court to
undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, but he
has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we
have conducted an independent review of the record and find no arguable issues.
11 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J.
We concur:
HOLLENHORST Acting P. J.
KING J.